Scottish High Court of Justiciary Decisons

Mcdonald v. Procurator Fiscal [2003] ScotHC 14 (20 March 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Macfadyen Lord Caplan	Appeal No: XJ598/03 OPINION OF THE COURT delivered by LORD MACFADYEN in APPEAL in terms of section 174 of the Criminal Procedure (Scotland) Act 1995 in the cause ANTHONY McDONALD Appellant; against PROCURATOR FISCAL, Elgin Respondent: ______

 

 

Appellant: M. Bovey, Q.C., Blair; Balfour & Manson

Respondent: A. Dewar, Q.C., A.D.; Crown Agent

20 March 2003

Introduction

1. On 4 September 2001 the appellant pled guilty to a number of charges on summary complaint in the Sheriff Court at Elgin. The Sheriff adjourned the case until 1 October 2001 under section 201(1) of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") for the purpose of enabling a social enquiry report and a psychiatric report on the appellant to be prepared. Under section 201(2) the appellant was remanded on bail. In addition to imposing the standard conditions set out in section 24(5) of the 1995 Act, the Sheriff imposed a further condition under section 24(4)(b). That additional condition was that the appellant was:

"(e) to remain in his dwellinghouse at all times with the exception [of]

between the hours of 10 a.m. and 12 noon daily and also with the exception for the accused to attend the appointments for the preparation of Court reports".

The appellant did not appeal against the imposition of that condition within the period of 24 hours specified in section 201(4).

2. After the time for appeal had expired the appellant discovered that one effect of the additional bail condition was that the Employment Service regarded it as rendering him unavailable for employment. The view was taken that, by virtue of sections 1(2)(a) and 6 of the Jobseekers Act 1995, he was thereby disqualified from entitlement to the jobseeker's allowance which he had until then been receiving. An application was therefore made to the Sheriff on 6 September for review of the condition. The application was refused. We were informed that the Sheriff took the view that it was not competent for him to review the condition at that stage. The application for review was renewed on 10 September. It is not clear what the statutory basis of the application was, but it was granted. The condition was varied to the effect of allowing the appellant to leave his dwellinghouse between 7 a.m. and 7 p.m. each day.
3. The appellant was subsequently charged on summary complaint at the instance of the respondent that he had on four occasions (twice on 8 September and twice on 9 September) contravened section 27(1)(b) of the 1995 Act by failing without reasonable excuse to comply with the original additional bail condition. The appellant lodged a Minute contending that the respondent had no power to proceed with the complaint, because the condition which he was alleged to have contravened constituted an infringement of his rights under Article 5 of the European Convention on Human Rights ("the Convention"). The Sheriff heard a debate on the issues raised in the Minute and on 21 August 2002 issued his decision holding that the condition was not an infringement of the appellant's rights under Article 5. Leave to appeal was granted, and we have heard that appeal.

Article 5

4. Article 5 of the Convention is in inter alia the following terms:

	"1.	Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
		(a)	the lawful detention of a person after conviction by a competent court;
		(b)	the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ..."

Paragraph 1 goes on to set out four further instances of arrest or detention which are permissible under Article 5 if imposed in accordance with a procedure prescribed by law, but it is unnecessary to set them out in detail.

5. Article 5(1) thus begins by conferring on everyone a right to liberty. That is expressed in general terms. The statement of the right is then reinforced by the statement of the corollary that no one shall be deprived of his liberty. But the corollary is expressed in qualified terms. The prohibition against depriving a person of his liberty is subject to certain exceptions. For a case to come within the scope of the exceptions and thus not constitute an infringement of the right conferred by the article, two conditions must be satisfied. First, the case must fall within the scope of one of the categories set out in sub-paragraphs (a) to (f), each of which is concerned with arrest or detention for a specified purpose. Secondly, the case will fall within the exception only if, in addition, the person has been deprived of his liberty in accordance with a procedure prescribed by law.
6. It follows from that analysis of Article 5 that a person is to be regarded as deprived of his liberty if he is arrested or detained. If, however, the arrest or detention falls within one of the categories specified in the subparagraphs, and, in addition, has been carried out in accordance with a procedure prescribed by law, there will be no infringement of the right conferred by the article.

The appellant's contention

7. The basis on which the appellant invites us to hold that the additional bail condition constituted an infringement of his right under Article 5, and that consequently the respondent has no power to prosecute him for breach of that condition, can be set out in two propositions. The first is that the additional bail condition amounted to detention and thus deprived him of his liberty. The second is that that detention was not carried out in accordance with a procedure prescribed by law. That second proposition depends on the contention that detention is antithetical to the concept of bail, and that accordingly the court has no power to impose, as part of a bail order, a condition which subjects the person concerned to detention.

Detention or deprivation of liberty

The appellant's submissions

8. In order to provide the context for his submission that in the circumstances the additional bail condition deprived the appellant of his liberty, or subjected him to detention, Mr Bovey, senior counsel for the appellant, cited three cases decided in the European Court of Human Rights, and two decided in this court. He began with Guzzardi v Italy (1980) 3 EHRR 333. The applicant in that case was a suspected Mafioso who was placed under "special supervision" with an obligation to reside within a specified area on the island of Asinara. The order was made under legislation which allowed compulsory residence orders to be made in respect of dangerous persons. It was held that in the particular circumstances of the case the order violated the applicant's rights under Article 5(1). Mr Bovey's purpose in referring to the case was to rely on what was said about the nature of the right to liberty. It is sufficient to quote the following passages from the judgment the Court:

"92. The Court recalls that in proclaiming the 'right to liberty', paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. ... [The] paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as type, duration, effects and manner of implementation of the measure in question.

93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."

After noting in paragraph 94 that special supervision with an order for compulsory residence of the form applied to the applicant did not per se amount to deprivation of liberty, and that the question was therefore whether the manner of implementation of the measure in relation to the applicant yielded the result that in his case it did amount to such deprivation, the Court in paragraph 95 gave detailed consideration to the circumstances in which the applicant found himself and concluded that on balance the applicant's case was one involving deprivation of liberty.

9. Mr Bovey referred to two cases which he said illustrated where the border-line between restriction of liberty and deprivation of liberty lay. Mancini v Italy (Application no. 44955/98, judgment 10 July 2001) was concerned with whether there was a violation of Article 5(1) by reason of delay in substituting house arrest for imprisonment, in the context that both imprisonment and house arrest were held to amount to a deprivation of the applicants' liberty (paragraph 17). House arrest was said to "require the applicants to stay in their home and leave only with the authorities' prior authorisation" (paragraph 11). Mr Bovey sought to draw an analogy between the original bail condition in the present case and house arrest as described in Mancini, and to suggest that, if house arrest amounted to detention or deprivation of liberty, so too did the original bail condition. Raimondo v Italy (1994) 18 EHRR 237 lay on the other side of the border-line. It, like Guzzardi, was a case of "special supervision". That involved "a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention" (paragraph 13). In the circumstances (in contrast to the somewhat different circumstances of Guzzardi) the special supervision was held not to amount to deprivation of liberty within the meaning of Article 5(1), but to amount to restriction of liberty under Article 2 of Protocol 4 (paragraph 39). Mr Bovey submitted that the present case was more akin to Guzzardi than to Raimondo.
10. The two domestic cases to which Mr Bovey referred were K v HM Advocate 1991 SCCR 343 and Brawls v Walkinshaw 1994 SCCR 7. In K, the appellants, who were children, were committed for trial. Because they were certified as unruly in terms of section 24 of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act"), they were committed to prison rather than to a place of safety. Subsequently, they were granted bail with a condition that they reside in secure accommodation in a List D school. They were indicted for trial on a date over six months after the date on which they had been committed. They took pleas in bar of trial, claiming entitlement to the protection of the 110 day rule (then provided for by section 101 of the 1975 Act (as amended)). The Crown sought to argue that the appellants, once granted bail, were no longer detained by virtue of their committal, but were instead detained by virtue of the bail condition (348D). That argument was rejected. Lord Justice General Hope said (at 349A):

"In the present case the factual position is [that the] appellants, although granted bail, were not set at liberty because of the additional conditions of bail which were imposed on them. The critical question, so far as the application of section 101(2) is concerned, is whether they were still being 'detained by virtue of that committal', that is to say by virtue of their committal on 8 May 1990 for the offences for which the Crown now seek to bring them to trial. In our opinion they continue to be so detained, because the bail orders did not result in their release from custody. In this situation the appellants are, we think, entitled to the benefit of the statutory time-limits and to plead them in bar of trial."

In Brawls, the appellants were released on bail subject to a condition that they should each remain within the curtilage of his own home address except for appearances in court. A period of more than forty days, regulated in that way, passed before they were brought to trial. They took pleas in bar of trial based on section 331A of the 1975 Act (as amended), which provided that a person charged with a summary offence and detained pending trial must be tried within forty days. The Sheriff repelled the pleas and the appellants appealed to the High Court. The appeals were dismissed. The Court identified the issue in the appeal as being whether the effect of the bail condition was that the appellants were being detained. K was distinguished on the basis that there the intention underlying the imposition of the bail condition had been that the appellants should continue to be detained in secure conditions, whereas in Brawls there was no intention that the appellants should remain in secure conditions. Lord Justice General Hope said (at 11G - 12B):

"The essential element of detention, within the proper meaning of that word, is the intervention of some outside agency to ensure that the person remains where he has been put. To detain somebody is to keep him in confinement or under restraint. There is a clear distinction between that situation and a situation where someone remains voluntarily in the place where he has agreed to remain.

We are not to be taken as assuming that the appellants will breach the conditions which they have agreed to observe. Nor are we deciding this case upon the basis ... that the condition is one to which the appellants have agreed. The point in this case is a different one, and it relates to the nature of the condition under which they undertook to remain within the curtilage of their homes. The condition was dependent for its effect entirely upon their own willingness to abide by it voluntarily. In our opinion, that cannot be said to be detention, and for that reason the statutory provision about the time-limit does not apply."

Mr Bovey submitted that it was not right to regard a restriction imposed by a bail condition as something which depended on voluntary compliance. As the present case illustrated, a bail condition could be enforced by prosecution for breach, and a prison sentence could be imposed on conviction. Direct compulsion by means of locked doors or guards could not be the sole mark of detention, since, if it was, a prisoner on day release, or in an open prison, could be said not to be in detention. In any event, Brawl was concerned with domestic law, not the Convention.

11. Mr Bovey therefore sought to apply to the circumstances of the present case the "range of criteria" mentioned in Guzzardi, namely "type, duration, effects and manner of implementation". So far as type was concerned, he submitted that the original bail condition in the present case was of the nature of house arrest. It went beyond a mere condition requiring residence at a particular address. He accepted that such a requirement was commonplace. He also accepted that a curfew condition requiring a person to stay in his house between specified hours did not per se amount to detention, since he did not attack the validity of the amended condition in the present case. Mr Bovey did not attach much importance to the question of duration. Although it might have lasted much longer, in the event the condition complained of lasted for only six days. Mr Bovey laid much more stress on the effect of the condition. He relied in particular on the effect which the condition was perceived by the Employment Service to have on the appellant's availability for employment, and thus on his eligibility for jobseeker's allowance. He was thus unable either to earn a living or to obtain benefits. He was put at risk of starvation. The utility of the two hour period during which he was free to leave home each day was severely restricted by the fact that he lived in Dufftown, a forty minute bus journey away from Elgin, where the offices of the agencies to whom he might turn for help were located. The practical impact of the condition was thus extremely severe. The manner of implementation was also severe. The sanction for enforcement of the condition was prosecution, which could result in imprisonment. The risk of prosecution was anything but theoretical, as the facts of the case showed.
12. In all these circumstances, Mr Bovey submitted, the original form of the additional condition went beyond a mere restriction of liberty, and should properly be regarded as amounting to detention and thus as constituting deprivation of liberty.

The Crown submissions

13. The Advocate depute submitted that the original additional condition restricted the appellant's liberty, but could not be said to deprive him of it entirely. The circumstances fell short of amounting to detention. The best test of what constituted detention was to be found in Brawls, in the passage already quoted - was there an outside agency intervening to ensure that the appellant remained where he had been put; was he kept in confinement or under restraint? It was plain that when Lord Justice General Hope used the word "voluntarily" he was not overlooking the fact that criminal sanctions could be applied for breach of bail conditions. So far as the European authorities were concerned, little could be taken from Mancini, because there was no clear indication of what was involved in house arrest. Raimondo was of no assistance to the appellant, because in that case there was held to be no deprivation of liberty. The circumstances of Guzzardi were so remote from those of the present case, that nothing beyond the Court's general approach to what constituted deprivation of liberty could reasonably be taken from it.
14. The Advocate depute drew our attention to the reasoning of the Sheriff in paragraph 8 of his decision in relation to the "detention" issue on the eleventh page of his Note. There the Sheriff sought to apply the approach identified in Guzzardi to the facts and circumstances affecting the appellant. He noted inter alia (i) that the condition did not prevent the appellant from occupying his own home; (ii) that within the two hour period each day when he was free to leave his house, there were no restrictions on his movements; (iii) that there were no restrictions imposed on his freedom to communicate from his home by telephone or other means (although we were informed that the appellant in fact had no telephone in his house; the Sheriff does not appear to have been informed of that); (iv) that there was nothing in the condition which came between the appellant and his normal family life "such as it may have been"; (v) that there was no "close supervision", and no reporting obligations; the condition was secured by the presence of sanctions for breach; (vi) that the appellant's social life was curtailed but not excluded; he was free to see friends within his own home; (vii) that the condition did render him unavailable for work, and consequently affected his income from benefits. The Sheriff concluded that the condition came very close to, but fell short of, deprivation of liberty. It did not amount to detention. The Advocate depute submitted that the Sheriff had been correct in reaching that conclusion.

Discussion

15. Since the appellant's submissions are based on Article 5(1) of the Convention, it is in our opinion appropriate to begin with the language of the Article. As we have already noted, it begins by conferring a right to liberty. The stated corollary of that right is that no one shall be deprived of his liberty. But that corollary is subject to qualifications which permit arrest and detention in certain circumstances. It is evident that arrest and detention are seen as antitheses of liberty. It follows, in our view, that if a person is detained, he has been deprived of his liberty. That is what the appellant contends was the effect on him of the original additional bail condition. It amounted to detention, and thus deprived him of his liberty.
16. It was emphasised in paragraph 92 of the judgment in Guzzardi that Article 5 is concerned with the physical liberty of the person. The point was also made that the article is concerned with deprivation of liberty as distinct from mere restriction of liberty. The difficulty of drawing that distinction in borderline cases was acknowledged in paragraph 93. It was recognised that it is a matter of degree or intensity. It is, however, reasonably clear that imprisonment can be taken as a case of deprivation of liberty. It is equally clear, in our view, that many forms of bail conditions that are familiar in everyday practice will involve a restriction of the liberty of the person made subject to them, but will fall short of depriving him of his liberty in the sense contemplated in Article 5(1). For example, it is common for a bail order to include a condition that a person should reside at a particular address (frequently not his own normal address), or that he should make no contact with a named person (usually a complainer or witness in the case). These are clearly restrictions of his liberty, but equally clearly do not deprive him of his liberty. It was not disputed that the revised version of the additional condition in the present case, which required the appellant to remain in his dwellinghouse from 7 p.m. to 7 a.m. each night, was a restriction on, but did not deprive him of, his liberty.
17. Of the two Scottish cases cited, we do not regard K as being of material assistance. It was clear in it that the appellants were detained while they were resident in secure accommodation in the List D school. The issue was whether they were latterly still detained by virtue of their original committal, or were by that stage detained by virtue of the bail condition. It is therefore not a case which affords guidance on when a person may be held to be in detention or deprived of his liberty. We do, however, regard aspects of the dicta in Brawls as instructive. We agree that in the ordinary sense of the word "detention" implies that the person who is detained is in some way "kept in confinement or under restraint". A person is not "detained" (or for that matter "deprived of his liberty") in the ordinary sense of the word unless something is being done "by some outside agency to ensure that [he] remains where he has been put". In the normal connotation, the something that is being done to that end is something physical, for example by the locking of doors or the presence of guards. A person would not normally be regarded as "detained" if he was merely told to stay where he was under threat that if he did not obey the instruction he would be punished. In that context, we find that the reference to a person acting "voluntarily" when he abides by a bail condition requiring him to remain in a particular place requires some explanation. Given the criminal sanction attached to non-compliance with a bail condition, the person who complies is not, in our view, acting voluntarily in the fullest sense. He is, however, choosing to comply rather than incur the sanction. It is in that diluted sense that he is acting voluntarily. In the circumstances we regard the fact that the appellant, while subject to the original bail condition, was not subject to any physical confinement or restraint as pointing strongly to the conclusion that he was not detained or deprived of his liberty. His freedom was restricted in that he was subject to an order not to leave his house during 22 of every 24 hours, and disobedience to the order constituted a criminal offence. That restriction was not, however, in its nature such as to amount to detention or deprivation of his freedom.
18. That prima facie conclusion derived from a consideration of the nature of the concept of detention is, in our opinion, reinforced by consideration of the whole range of criteria to which reference is made in Guzzardi. We note that the reference in paragraph 92 is to "a whole range of criteria such as type, duration, effects and manner of implementation of the measure in question". The list is thus not exhaustive, but merely gives examples of relevant criteria. It seems to us, however, that the type of measure in the present case is one which falls short of detention. It contrasts with the circumstances in Guzzardi, where the applicant was held within a confined area on a small island under close physical supervision. It involves an order on the appellant requiring him (a) to live in his own house and (b) not to leave it except during a period of two hours each day. Compulsory residence at a particular address is not a type of measure which per se points to detention, since it is commonplace in bail orders. The fact that the place of compulsory residence is the appellant's own house tends to point away from detention. The restriction leaves him with complete freedom of movement during the two hour period, with no need for advance notice to the police, or examination of his reasons for going out, as in Raimondo. The requirement that he remain within his house for 22 hours out of 24 is a significant restriction of his liberty, but falls short of complete deprivation. Mr Bovey sought to liken it to the house arrest to which the applicant in Mancini was subject. We are not persuaded that that is sound. The report in Mancini does not disclose what measures of enforcement were attached to house arrest. The term seems likely to imply some means of direct enforcement. That no doubt goes to "manner of implementation" rather than "type", but we consider that it is unsafe to suppose that the house arrest in Mancini was truly similar to the appellant's situation in the present case. We agree with Mr Bovey that little is to be derived in the circumstances of the present case from consideration of the duration of the measure. We accept that the effect of the condition on the appellant was severe. Whether or not it is correct that it disqualified him from receiving any form of benefit, the Employment Service certainly took the view that it disqualified him from receiving the jobseeker's allowance that he had been receiving, and it cannot be said that that view was incompatible with the terms of the Jobseekers Act. The appellant's relative geographical isolation added to the gravity of the impact of the brevity of the period of freedom allowed to him each day. It can therefore be said that the effect of the condition on the appellant's freedom was in those respects severe, but even there it was not complete. So far as manner of implementation is concerned, we are brought back to the fact that there was no physical compulsion deployed to see that the appellant stayed in his own house. The sanction of criminal proceedings was no doubt real and compelling, but in our view it was indirect. It punished disobedience rather than directly compelling obedience. It was, in our view, different in quality from physical confinement or restraint. Indeed when he accepted the original condition, the appellant no doubt did so in order to avoid the physical confinement in which he would have remained if he had not done so.
19. Taking account of all these considerations, we remain of opinion that, while the original bail condition imposed very considerable restrictions on the appellant's liberty, they did not deprive him of it. He retained a reduced level of physical liberty represented in the main by (i) the fact that the place in which he was required to live was his own home, (ii) the fact that he was free to leave it for any purpose he chose during the two hour permitted period each day, and (iii) the fact that the condition was enforced not directly by physical restraint, but only indirectly by the sanction attracted by disobedience. It would, in our opinion, be wrong to equate the effect of the condition to detention.

The appellant's second proposition

20. As we have recorded in paragraph [6] above, the appellant's argument was that the condition, if it amounted to detention, was inconsistent with the concept of bail, the purpose of which was to secure a person's release from detention. Before the Sheriff, that point was not disputed by the Crown. The Sheriff recorded the Crown position (at page 2 of his Note) in the following terms:

"The Procurator Fiscal confirmed that, while he was not making a concession as such, it was accepted by the Crown that one could not be subject to detention and bail at the same time; that if I held that the Appellant, while on bail, had been detained, then there could not be a lawful bail order".

Before us the Advocate depute sought to withdraw from that position. He indicated that he would wish to argue that, if the condition deprived the appellant of his liberty, that deprivation was nevertheless legitimate by reason of falling within the scope of one of the subparagraphs and being "in accordance with a procedure prescribed by law". Had we been persuaded that the condition constituted detention or deprivation of liberty, we would have required to hear the Advocate depute and Mr Bovey on that point. In the result, however, since we hold that the condition did not place the appellant in detention or deprive him of his liberty, it is unnecessary for us to address the issue that would only have arisen had we held otherwise.

Result

21. For the reasons which we have set out we hold that the additional bail condition in its original form did to a substantial extent restrict the appellant's freedom. It did not, however, place him in detention or deprive him of his freedom. It follows that the appellant has failed to establish that the condition violated his rights under Article 5(1) of the Convention. The appeal is therefore refused.